J-A14035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SETH LOUIS HAMILTON

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1581 WDA 2019

Appeal from the Judgment of Sentence Entered October 1, 2019

in the Court of Common Pleas of Mercer County

Criminal Division at No(s): CP-43-CR-0001277-2018,

CP-43-CR-0001881-2017

BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 10, 2020

Seth Louis Hamilton (“Hamilton”) appeals from the judgment of

sentence imposed following his convictions of two counts each of aggravated

assault with a deadly weapon, receiving stolen property, and criminal

conspiracy; and one count each of aggravated assault, criminal attempt,

firearms not to be carried without a license, tampering with or fabricating

physical evidence, theft from a motor vehicle, criminal conspiracy, theft by

unlawful taking, possession of a small amount of marihuana, and possession
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of drug paraphernalia.1, 2 We affirm.

In its Opinion, the trial court set forth the relevant factual history as

follows:

On the evening of October 25, 2017, three young men

conspired to rob [Hamilton]. The motive for the robbery was a

debt Hamilton owed to one of the co-conspirators, Zachary

Cutshall [(“Cutshall”)]. Under the guise of giving Hamilton a ride

to Greenville, Pennsylvania[,] to purchase marijuana, [the

second co-conspirator,] Jacob Barger [(“Barger”),] stopped the

vehicle in a remote location on Delaware [R]oad in Mercer

County, Pennsylvania. Barger and the third co-conspirator,

Dominic Heasley [(“Heasley”)], then exited the vehicle using the

excuse [that] they had to urinate.

Upon [Barger and Heasley’s return] to the vehicle,

[Cutshall] pulled out what was later determined to be a BB pistol

and robbed Hamilton. [Cutshall] and Hamilton [were seated] in

the back seat of the vehicle. Cutshall [was] on the passenger

side and Hamilton [was] on the driver side. Due to the fact

[that] it was night[time], and the fact [that] the BB pistol looked

like a real handgun, Hamilton complied with Cutshall’s demand

to hand over his personal property, which included his wallet,

cell phone, and a drawstring bag that contained a small amount

of marijuana and some drug paraphernalia. Cutshall then

ordered Hamilton to get out of the vehicle.

Unbeknownst to the three co-conspirators, Hamilton had a

real handgun in his possession at the time of the robbery.

Coincidentally, he had stolen this handgun out of an unlocked

pick-up truck the day before the robbery. When he got out of

the vehicle, Hamilton asked Barger whether he knew about the

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1 18 Pa.C.S.A. §§ 2702(a)(4), 3925(a), 903(a)(1), 2702(a)(1), 901(a),

6106(a)(1), 4910(1), 3934(a), 3921(a); 35 P.S. § 780-113(a)(31), (32).

2 Hamilton was acquitted of first-degree murder, attempt to commit first- degree murder, third-degree murder, and possession with intent to deliver a

controlled substance. See 18 Pa.C.S.A. §§ 2502(a), 901(a), 2502(c); 35

P.S. § 780-113(a)(30).
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conspiracy. Barger acknowledged he did. Hamilton then pulled

the handgun out of his waistband and, while holding the

passenger door open, fired the handgun at [Cutshall]

approximately five times. One round fatally struck Cutshall in

the neck area.

Hamilton then proceeded around to the rear of the vehicle

and fired more rounds through the back window. One of these

rounds penetrated the front passenger seat and struck [Heasley]

in the shoulder. Hamilton then fled into the woods. However,

he later met up with Barger, Heasley, and the now[-]deceased

Cutshall[] at the parking lot for Vaughn Chiropractic[,] where

Barger had moved the vehicle. Hamilton remained there with

them despite knowing that Heasley had placed a 911 call. The

Pennsylvania State Police found the four of them at the site.

Trial Court Opinion, 12/30/19, at 1-2 (unnumbered).

On April 12, 2019, a jury found Hamilton guilty of the above- mentioned offenses. The trial court deferred sentencing and ordered the

preparation of a pre-sentence investigation report. Subsequently, the trial

court sentenced Hamilton to an aggregate term of 15 to 30 years in prison,

followed by four years of probation.3 On October 1, 2019, the trial court

entered an Order amending Hamilton’s sentence for possession of a small

amount of marihuana from one year of probation to one month of probation,

to be served consecutively to all other counts.

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3 The convictions for theft from a motor vehicle and criminal conspiracy to

commit theft from a motor vehicle merged at sentencing with the count for

receiving stolen property. The convictions for theft by unlawful taking,

receiving stolen property, and criminal conspiracy to commit theft by

unlawful taking merged at sentencing with the conviction for receiving stolen

property.
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Hamilton filed a post-sentence Motion requesting reconsideration of his

sentence, which the trial court denied. Hamilton filed timely Notices of

Appeal, one at each docket number, and a court-ordered Pa.R.A.P 1925(b)

Concise Statement of matters complained of on appeal.

On appeal, Hamilton raises the following questions for our review:

1. Did the [trial c]ourt err in directing a verdict of guilty on the

gun possession charge and pre-empting self-defense?

2. Did the [trial c]ourt err in refusing [Hamilton’s] requested

point for charge #6 (justification of deadly force)?

3. Did the [trial c]ourt err in refusing [Hamilton’s] requested

point for charge #3 (defining robbery)?

4. Did the [trial c]ourt err in refusing [Hamilton’s] requested

point for charge #4 (voluntariness of confession)?

5. Did the [trial c]ourt err in reading the Commonwealth’s points

for charge #3, 4, 5 and 7 (Williams case)?

6. Were the [trial c]ourt’s discretionary aspects of the sentence

abused?

Brief for Appellant at 8-10.

In his first claim, Hamilton alleges that the trial court erred in its

reading of the Commonwealth’s requested jury instruction number 6,

relating to Hamilton’s defense of justification. Brief for Appellant at 32-36.

Hamilton directs our attention to the trial court’s statement that “[Hamilton]

was not entitled to stand his ground and use deadly force in this case

because he illegally possessed the firearm and legally [sic] concealed that

firearm on his person. He had a duty to retreat.” Id. at 34. Hamilton
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claims that his actions were justified as self-defense in response to the co- conspirators robbing him at gunpoint. Hamilton argues that this instruction

is a misstatement of law because it fails to acknowledge that Hamilton only

had a duty to retreat if he could do so safely. Id. at 34-35.

When reviewing a challenge to jury instructions, the

reviewing court must consider the charge as a whole to

determine if the charge was inadequate, erroneous, or

prejudicial. The trial court has broad discretion in phrasing its

instructions, and may choose its own wording so long as the law

is clearly, adequately, and accurately presented to the jury for

its consideration. A new trial is required on account of an

erroneous jury instruction only if the instruction under review

contained fundamental error, misled, or confused the jury.

Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009).

Pennsylvania’s justification statute provides, in relevant part, as

follows:

(a) Use of force justifiable for protection of the person.-- The use of force upon or toward another person is justifiable

when the actor believes that such force is immediately necessary

for the purpose of protecting himself against the use of unlawful

force by such other person on the present occasion.

(b) Limitations on justifying necessity for use of force.-- .... (2) The use of deadly force is not justifiable under this section

unless the actor believes that such force is necessary to

protect himself against death, serious bodily injury,

kidnapping or sexual intercourse compelled by force or

threat....

18 Pa.C.S.A. § 505 (emphasis added). The requirement of a reasonable belief encompasses two

aspects, one subjective and one objective. First, the defendant

must have acted out of an honest, bona fide belief that he was in
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imminent danger, which involves consideration of the

defendant’s subjective state of mind. Second, the defendant’s

belief that he needed to defend himself with deadly force, if it

existed, must be reasonable in light of the facts as they

appeared to the defendant, a consideration that involves an

objective analysis.

Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012) (quotation

marks omitted). “Although a defendant has no burden to prove a claim of self-defense

before such a defense is properly in issue, there must be some evidence,

from whatever source, to justify such a finding. Commonwealth v.

Sanchez, 82 A.3d 943, 980 (Pa. 2013) (quotation marks omitted).

In Mouzon, our Supreme Court was faced with the issue of whether

the appellee had presented sufficient evidence at trial to present the jury

with a justification instruction. Id. at 747-52. The Court found that because

the appellee had not testified at trial, or presented other evidence, regarding

his subjective state of mind at the time of the shooting, a justification jury

instruction was improper. Id. Our Supreme Court explained that

[the] appellee did not testify and describe his subjective

thinking, relying instead on inferences from the circumstances as

observed by others.

In the absence of specific evidence concerning appellee’s

subjective beliefs, he appears to proceed under the assumption

that anyone in his circumstance would feel the necessity to

employ deadly force in self-defense. ... Absent testimony or

some other specific account of what appellee actually believed,

the evidence was not sufficient to raise a jury question whether

appellee subjectively believed that he had to use deadly force

when he twice pulled the trigger.
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Id. at 751-52. Similarly, Hamilton neither testified at trial, nor presented any other

evidence, regarding his subjective state of mind when he shot the victims.

See N.T., 4/9-12/19, at Volumes I-III. Therefore, Hamilton did not present

sufficient evidence to raise a justification claim, and was not entitled to a

justification jury instruction. See Mouzon, supra; Sanchez, supra. Accordingly, any inaccuracy in the trial court’s reading of the justification

jury instruction constituted harmless error, and Hamilton’s first claim fails. See Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (stating

that “[h]armless error exists where ... the error did not prejudice the

defendant or the prejudice was de minimis....”).

We will address Hamilton’s second and third claims together, as they

are related. Hamilton alleges that the trial court erred in not giving his

requested jury instructions numbers 6 and 3, regarding justification

pursuant to a citizen’s arrest and robbery, respectively. Brief for Appellant

at 37-40. Hamilton claims that he was attempting a citizen’s arrest of the

co-conspirators when he shot them. Hamilton argues that the instructions

were necessary for the jury to find that he was justified in employing deadly

force pursuant to a citizen’s arrest. Relevantly, Hamilton requested that the

trial court read language set forth in our Supreme Court’s decision in

Commonwealth v. Chermansky, 242 A.2d 238 (Pa. 1968). Hamilton
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argues that the trial court’s failure to read his requested instructions

constituted fundamental error and requires a new trial. Id. at 38, 40. In Chermansky, our Supreme Court set forth the law regarding

the use of deadly force by a private person attempting to conduct a

citizen’s arrest. The Court stated,

[a] private person in fresh pursuit of one who has committed a

felony may arrest without a warrant. And in Pennsylvania we

have always followed the common law rule that if the felon flees

and his arrest cannot be effected without killing him, the killing

is justified. We hasten to note that before the use of deadly

force is justified[,] the private person ... must give notice

of his purpose to arrest for the felony if the attending

circumstances are themselves insufficient to warn the felon of

the intention of the pursuing party to arrest him.

Id. at 40 (citations omitted; emphasis added).

Here, the record reflects that Hamilton gave no warning to any of the

co-conspirators that he intended to arrest them for the robbery, and the

circumstances were insufficient to warn the co-conspirators that Hamilton

intended to arrest them. See N.T. (Volume II), 4/9-12/19, at 54-56

(wherein Heasley testified that Hamilton gave up his belongings, exited the

vehicle, asked Barger if he knew about the planned robbery, then fired

gunshots into the vehicle); id. at 91-92 (wherein Barger testified that

Hamilton exited the vehicle, asked him whether he knew about the planned

robbery, then fired gunshots into the vehicle). Thus, there was no evidence

presented at trial upon which Hamilton could support his claim of

justification pursuant to a citizen’s arrest, and the trial court did not abuse
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its discretion in declining to read Hamilton’s requested jury instructions

numbers 6 and 3. See Allen, supra; Chermansky, supra. Accordingly,

Hamilton’s second and third claims fail.

In his fourth claim, Hamilton alleges that the trial court erred in not

giving his requested jury instruction number 4, regarding the voluntariness

of his confession to police. See Brief for Appellant at 41-43. Hamilton

acknowledges that the trial court addressed this claim prior to trial, in

response to his pre-trial suppression Motion, but argues that the jury was

entitled to make its own assessment of the voluntariness of his confession.

Id. at 42. Hamilton claims that had the jury determined that his confession

was involuntarily given, it would not have been permitted to consider

Hamilton’s confession in its assessment of guilt. Id.

Our review of the record discloses that Hamilton did not include this

claim in his Pa.R.A.P. 1925(b) Concise Statement. See Pa.R.A.P.

1925(b)(4)(vii) (stating that “[i]ssues not included in the Statement ... are

waived.”); see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.

2005) (stating that “[a]ny issues not raised in a Pa.R.A.P. 1925(b)

statement will be deemed waived.”); Pa.R.A.P. 302 (stating that “[i]ssues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.”). Thus, this claim is waived.

In his fifth claim, Hamilton alleges that the trial court erred by reading

the Commonwealth’s requested jury instructions numbers 3, 4, 5, and 7,
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which described certain elements of first-degree murder and aggravated

assault. Brief for Appellant at 44-45. According to Hamilton, these

instructions directed the jury to find facts in favor of a finding of guilty as to

Hamilton’s aggravated assault charges, and thereby “invaded the province of

the jury.” Id. at 45.

Here, Hamilton fails to develop his claim with cites to the record or

relevant legal authority. Hamilton makes bald claims that the instructions

directed the jury to make certain conclusions of fact, without indicating what

these facts were or citing to case law showing that the jury instructions were

incorrect statements of law. “[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority[,] or fails to develop

the issue in any other meaningful fashion capable of review, that claim is

waived.” Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). It

is not the role of this Court to “formulate [an a]ppellant’s arguments for

him.” Id. at 925. Accordingly, this claim is waived.

In his sixth claim, Hamilton alleges that the trial court abused its

discretion in sentencing him in the high end of the standard range on each of

his convictions, and in ordering that the sentences run consecutively. See

Brief for Appellant at 46-50. This claim challenges the discretionary aspects

of Hamilton’s sentence. “An appeal raising the discretionary aspects of sentencing is not

guaranteed as of right; rather, it is considered a petition for permission to
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appeal.” Commonwealth v. Mulkin, 228 A.3d 913, 916 (Pa. Super. 2020). Prior to reaching the merits of a discretionary sentencing issue,

[w]e conduct a four-part analysis to determine: (1) whether

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902

and 903; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence,

see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial

question that the sentence appealed from is not appropriate

under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Grays, 167 A.3d 793, 815-16 (Pa. Super. 2017)

(citation omitted).

When the appellant has not included a Rule 2119(f)

statement and the Commonwealth has not objected, this Court

may ignore the omission and determine if there is a substantial

question that the sentence imposed was not appropriate, or

enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e., deny allowance of appeal. However, this option is lost if the

Commonwealth objects to a 2119(f) omission. In such

circumstances, this Court is precluded from reviewing the merits

of the claim and the appeal must be denied.

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (brackets

omitted); see also Commonwealth v. Dawson, 132 A.3d 996, 1005 (Pa.

Super. 2015) (denying an appellant’s petition for permission to appeal the

discretionary aspects of her sentence where the appellant failed to include a

Rule 2119(f) statement in her brief and the Commonwealth objected).

Here, Hamilton filed a timely Notice of Appeal and raised his

sentencing claim in a post-sentence Motion. However, Hamilton did not
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include a Rule 2119(f) statement in his brief,4 and the Commonwealth has

objected to this deficiency. Brief for Commonwealth at 43. Accordingly, we

are precluded from considering Hamilton’s discretionary sentencing claim on

appeal. See Kiesel, supra; Dawson, supra. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/10/2020

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4 Although Hamilton states in the discussion of his sixth claim that his

“sentence violated a fundamental norm of the sentencing code and

sentencing process,” see Brief for Appellant at 47, he fails to explain how his

sentence violated a particular fundamental norm underlying the sentencing

process, with citations to legal authority. See Commonwealth v. Sauers, 159 A.3d 1, 16 (Pa. Super. 2017) (finding that the appellant had not

complied with Pa.R.A.P. 2119(f) where he did not “articulate the manner in

which the sentence violates either a specific provision of the sentencing

scheme set forth in the Sentencing Code or a particular fundamental norm

underlying the sentencing process.”).